Homeland Security searching some social media doesn't violate privacy

The Department of Homeland Security (DHS) has posted a new ruleon the Federal Register which authorizes adding information from an alien’s social media sites to the files that are kept in his/her official immigration records, such as “social media handles, aliases, associated identifiable information, and search results.”

The social media sites will be searched for information which pertains to granting aliens a visa or some other type of immigration benefit, and this almost certainly will lead to social media searches of the American citizens and lawful permanent residents who sponsor them.

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For instance, if a citizen files a visa petition to accord immediate relative status to his alien spouse, and information on the spouse’s Facebook site indicates that the marriage is a sham, DHS will search the citizen petitioner’s Facebook site for additional information to assist in determining whether the marriage really is a sham.

But the most important reason is to identify terrorists, and this is the reason that prompted 26 senators to ask DHS to search social media sites after the San Bernardino terrorist attack.

Social media sites provide a record of contacts with terrorist organizations.

When police investigated Syed Rizwan Farook and Tashfeen Malik, the terrorists who attacked Farook's office holiday party on December 2, 2015, at San Bernardino, Calif., killing 14 and wounding 22; they discovered social media communications the couple had had with terrorist organizations.

Malik had sent at least two private messages on Facebook to a small group of Pakistani pledging her support for Islamic Jihad and saying she hoped to join the fight one day.

One of Malik’s relatives told the Los Angeles Times that messages of religious extremism on her Facebook page had been a source of concern to her family.

The couple spoke to each other about jihad and martyrdom when they were engaged in online dating. This is an example of a situation in which a search of the alien beneficiary’s social media site would have provided cause for searching the petitioner’s social media site too.

When police went to their home, they found 2,000 9mm caliber bullets, more than 2,500 .223 caliber bullets, several hundred .22 long rifle bullets, and 19 pipes that could be converted into bombs. The terrorists used five firearms during the attack, and left behind three pipe bombs wired to a remote control.

McCain introduced a bill to require DHS to review social media in foreign background checks.

Will the social media searches violate the Fourth Amendment?

The Electronic Frontier Foundation and the ACLU have filed a lawsuit to stop DHS from searching mobile electronic devices at the border in violation of the Fourth Amendment to the U.S. Constitution. I expect them to challenge social media checks on the same basis.

The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” But this only applies to situations where an individual has “a reasonable expectation of privacy,” which is not an easy concept to apply to social media information.

In any case, there is no expectation of privacy in immigration processes. Most, and perhaps all, of the persons involved in immigration processes have to authorize DHS to investigate them and the information they provide.

For instance, an American citizen or lawful permanent resident who files a visa petition for a relative has to fill out a Form I-130 Petition for Alien Relative, which requires extensive information about the petitioner, his/her spouse, and his/her parents. It requires similar information about the alien who is the beneficiary of the petition.

The petitioner also has to authorize the release of information that is needed for the adjudication of the petition, or that is “necessary for the administration and enforcement of U.S. immigration laws.”

The Form DS-160 Application for a Nonimmigrant Visa requires even more information, and it should be apparent to aliens applying for a visa that they are subject to background investigations.

I am not convinced, therefore, that social media searches violate privacy rights, and the San Bernardino terrorist attack has shown that information on social media sites can help DHS to identify terrorists before they strike.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.